Law Line - Other Legal Issues

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Expungement

Suppose you have a criminal charge or a conviction on your record. You’d like to have those charges removed from your record. The law calls this “expungement.” You can file a civil legal case to ask for an expungement.

A criminal record can be expunged only in the state where the charge or conviction took place. Each state has its own laws. In West Virginia, the expungement rules are limited.

Let’s start with felony convictions. Felony convictions cannot be expunged. However, there are two options available:

ask the governor for a pardon OR

file for a criminal offense reduction for certain nonviolent felonies. For more information, listen to the message on Criminal Offense Reduction.

Next, let’s look at criminal charges that are dismissed and at misdemeanors where you were found Not Guilty. Good news. A lot of these types of charges can be expunged if there are no current charges or proceedings relating to the same matter.

But, even if you meet these criteria, your criminal record will NOT be expunged, if:

You were previously convicted of a felony;

The charges against you were dismissed because you pled guilty to another offense, as part of a plea deal; or

You were found not guilty because of mental illness, mental handicap or addiction.

Now suppose you have a misdemeanor conviction. Some misdemeanor convictions can be expunged in West Virginia. Four conditions must be met:

You were age 18 to 26 when convicted; AND

It has been 1 year since you completed your sentence or probation; AND

You don’t have any current arrest warrant or pending criminal proceeding; AND

You have no prior or subsequent convictions of any type.

Some misdemeanor convictions cannot be expunged. Period. Here are the misdemeanors that cannot be expunged:

Sexual offenses when victim was under 12 and offender over 18;

Assault or battery on a spouse, the other parent of your child, or a person with whom you had an intimate relationship with prior to the offense;

Cruelty to animals;

Driving with a suspended or revoked license;

Driving under the influence;

A conviction with the use or exhibition of a deadly or dangerous weapon; and

A conviction involving infliction of serious injury.

If you think you may qualify for an expungement, you can try to find an attorney to help you. Or you can try to do it yourself. Instructions and forms for expungement are on the West Virginia Supreme Court of Appeal’s website at www.courtswv.gov.

Criminal Offense Reduction

Suppose you have a nonviolent felony on your record. It’s hurting your chances of employment. You’d like to have it expunged from your record. Unfortunately, felonies cannot be expunged in West Virginia. But under a new law, you can file a civil case to see if you qualify for a Criminal Offense Reduction. A Criminal Offense Reduction is a process that allows for a judge to reduce certain non-violent felonies to a “reduced misdemeanor” on your criminal record. The intent of this law is to improve employment opportunities for those convicted of eligible offenses.

Not all felonies are eligible for a Criminal Offense Reduction. Here are the offenses that are not eligible:

offenses that involve the infliction of serious physical injury;

sexual offenses;

offenses that involve the use or showing of a deadly weapon or dangerous instrument;

assault and battery;

domestic violence;

DUI; and

felonies in which the circuit court finds to be inconsistent with the purposes of the law.

Also, two conditions must be met before you can file for a reduction:

You must wait 10 years after the completion of any sentence or period of supervision or probation for that conviction AND

During that 10-year period, you cannot commit or be convicted of any violation of law other than minor traffic offenses.

If your Petition is granted, what does it mean? It means that the label of “felony” is removed from the conviction. The conviction is then relabeled a “reduced misdemeanor.” This change is reflected on your criminal record. Again, this law only applies to felonies from West Virginia.

If your Petition is granted, how does this help you? If asked on an application for employment about prior felonies, you do not have to disclose that you have any felonies. But if asked about prior convictions, you must disclose that you have a “reduced misdemeanor.” Be careful and make sure you know exactly what is being asked on the application. If you have any questions about your specific situation, you should talk to a lawyer.

If you think you may qualify for a criminal offense reduction, you can try to find an attorney to help you. Or you can try to do it yourself. Instructions and forms are on the West Virginia Supreme Court of Appeal’s website at www.courtswv.gov.

For more information about Criminal Offense Reduction, read this article.

School Absences and Truancy

West Virginia law requires local school boards to have an attendance policy. This means that students are required to attend school, unless the absence is excused. In West Virginia, students are allowed to miss ten (10) unexcused days from school each school year. If a child has more than ten days of unexcused absences Child Protective Services may file a neglect petition against the parents. Criminal truancy charges may also be filed against parents and/or students. Truancy charges may result in fines, the parent being placed in jail, and placement of the student outside of the home.

Excused absences include absences resulting from school-approved activities; failure of the school bus to run; hazardous conditions that would cause harm to the student’s safety; doctor excused absences; absences that are allowed because of the student’s written educational plan; absences because of a serious illness or death of an immediate family member; and absences for religious instruction or observance of church ordinance. A parent must provide documentation of an excused absence to school officials.

If a student is required to miss a lot of school because of a chronic medical condition, or a physical or mental condition, a parent should ask for a medical waiver form from the county board of education office. Parents should take the form to their child’s doctor to fill out. This form should be returned to the board of education office.

If a student with a physical or mental condition is suspended or excluded from school because of his or her behavior, parents should talk to the school. Parents should ask whether the child has a behavioral support plan. Behavioral support plans can provide help to address these behaviors. If the student does not have a behavior support plan, the parent should write a request for an IEP meeting to talk about developing a plan. If the student does have a behavior support plan, a parent should write a request for an IEP meeting to talk about modifying the current plan or to make sure the plan is being followed by school staff.

As soon as a parent receives a written notice or letter about an issue with a child’s absences, the parent should immediately contact the school. The parent should talk to the school about the reasons for the missed days.

You have 2 options. (1) you can apply for the Second Chance Driver’s License Program which may allow you to set up a payment plan for your fines or (2) you can pay your fines and fees through the Court. For more information on the 2nd Chance Program, listen to the message on that program.

If you want to pay your fees, you should first call the main Department of Motor Vehicles office in Charleston at 1-800-642-9066, to find out exactly why your driver’s license was suspended. Make sure that you ask the DMV:

Where the tickets or citations are from.

The citation complaint numbers.

How much your reinstatement fees are through DMV and

How long your driver’s license will be suspended after all fees are paid. If you have been caught driving on a suspended license, there are mandatory time limits that you will still not be able to drive. If you are caught driving during that time period, it just adds more time on and can eventually make it so that you can’t have a driver’s license.

Next, you should call the Court(s) that you have citation(s) or ticket(s) in according to DMV. Find out what, if anything, you owe for the citation(s) and/or ticket(s). If you cannot pay the fines in full, see if the court will approve a payment plan. If you have already paid the fines, then you need to get a verification of payment to take to DMV.

After you have paid all fines owed to the Court and you have proof of payment, get that information to the DMV and pay the reinstatement fees.

Finally, once you have paid all court fines and you have paid all DMV fees, you will need to wait to drive until you have waited the mandatory time DMV tells you to wait.

You should know that all reinstatement issues must be handled by the main DMV office in Charleston. Local DMV offices do not handle reinstatements.

For more information about driver's license suspension for failure to pay court fines, read this article.

Second Chance Driver’s License Program

Under the Second Chance Driver’s License Program, you can apply to set up a repayment plan to reinstate your driver’s license if it has been suspended for unpaid court costs. To be eligible, there are 2 criteria. First, your license must have been suspended for failure to pay court costs. Second, you must be at least 12 months behind in payment of the costs. To apply, you must complete the application and submit the application to the WV Division of Justice and Community Services (DJCS). The application is available online at www.djcs.wv.gov.

When DJCS receives the application, they will coordinate with the courts and the DMV to determine the amount of unpaid court costs. With that information, DJCS will then decide if the applicant may participate.

If accepted into the program, DJCS will create a repayment schedule for the applicant. The applicant must make scheduled payments each month. The payment is determined based on the applicant’s monthly income and expenses. It will not be less than $50 per month. Based on the repayment schedule, the applicant must pay all the unpaid court costs within one year.

If accepted into the program, the applicant must keep up with the payment schedule. If the applicant doesn’t, DJCS will let the DMV know that the applicant is not in good standing. DJCS will issue a Certificate of Non-Compliance to the DMV.

Once the applicant has made all the payments, DJCS will issue a Certificate of Compliance to the DMV. That means the applicant has fulfilled the requirements of the program. Once the DMV receives the Certificate of Compliance, the DMV shall stay the applicant’s driver’s license suspension or revocation for unpaid court costs. That means that the DMV will no longer suspend or revoke the applicant’s license. However, if the applicant has not had a valid driver’s license for six months before entering the program, the DMV may also require the applicant to retest for a driver’s license.

Can I get permission to drive to work while my license is suspended?

If your license has been suspended for failure to pay fines, you can get some limited relief. But you must file a case in Circuit Court to do this. DMV is not permitted to make changes once your license has been suspended. Only a court can do that.

There are three options you can ask the Circuit Court to do:

for a hardship waiver of the entire amount of the unpaid fines; or

for a hardship waiver to pay a reduced amount of the fines; or

for a “work permit” to drive to and from work (but no where else) until the fines are paid off.

To get a hardship waiver you must prove to the Court why you cannot pay your fines.

To get the “work permit” you must prove to the Court that you are employed full time or part-time, and that you will use your car only for employment reasons.

There is a filing fee normally required to start this kind of court case. This fee can be waived if you do not make enough money. Ask the Clerk of Court for a Fee Waiver Affidavit. You must fill it out with information about your income and your expenses. You will also have to provide a document to verify each type of income you listed. If you qualify, the Clerk of the Court will waive the filing fee for you.

For more information about driver's license suspension for failure to pay court fines, read this article.

I didn’t know my spouse did our tax return with wrong information. What can I do?

Most married couples do a “married filing jointly” tax return. Marital deductions are larger this way. You may get a larger tax refund with a “married filing jointly” return.

To do a “married filing jointly” return, both spouses have to sign the joint return. By signing, you are saying the information is true. What if the information isn’t true or accurate? Then the IRS can come after you, or your spouse, or both of you for any tax owed.

So what happens if your spouse has been hiding information from you as well as the IRS? Of if your spouse forces you to sign a return that you know is false?

There is an “innocent spouse” defense. In these cases, the entire tax debt owed because of the wrong information can be shifted to the spouse who caused the problem. The IRS will not go after the innocent spouse. But realize these are difficult cases to win.

What do you have to prove to get Innocent Spouse protection? One of two things.

One possibility is that you did not know AND did not have any reason to know that the information was wrong. For example, you didn’t know your spouse was earning money under the table.

The other possibility is that you knew it was wrong, but your spouse forced you to sign the tax return anyway. You’ll have to prove you were coerced into signing, by threat of violence or other harm.

Finally, you don’t have to be divorced to win an Innocent Spouse case. But it is a factor the IRS will consider.

To file a claim for innocent spouse use Form 8857 available on IRS.gov.

For more information about innocent spouse relief for a tax debt, read this article.

The IRS is taking our whole refund for debts my spouse owes but I don’t.

We all know the IRS can take your refund to pay back taxes. The IRS also can take your refund for some other special types of debts. The big three are student loan debt, child support or alimony debt, and some state tax debts.

So what happens if you’re married, and your spouse owes some of these debts? Does that mean you lose your tax refund because of your spouse’s old debts? The answer is “not necessarily.” You may be able to file what’s called an “Injured Spouse” claim.

Most married couples use a “married filing jointly” tax return. Marital deductions are larger this way. You often get a larger tax refund with a “married filing jointly” return instead of “married filing separately.“ But then the IRS will assume the whole tax refund is available to pay off any of these special debts owed by either spouse.

However, you may be able to protect your refund from being taken for your spouse’s debts. There are three requirements:

One, you are not responsible for the debt of the other spouse;

Two, you had your own wages you reported on the joint return; and

Three, you had federal taxes taken out of your wages.

Filing an Injured Spouse claim is simple. An injured spouse can complete FORM 8379, available on the IRS.gov web site. Or you can simply write INJURED SPOUSE on the upper left hand corner of the tax return itself.

Stepparent Adoption

Do you want to adopt a stepchild/ren? What does stepparent adoption mean, legally speaking?

Stepparent adoption is the court process that transfers rights and duties from a child’s biological parent to the child’s stepparent. If your spouse has a child that is not your biological child, a stepparent adoption is a way for you to ask a court to make you a legal parent for that child. Your spouse who is the birth parent will join in the adoption.

The written permission of the other birth parent is required unless:

They have passed away

Have had their parental rights taken away due to abuse and/or neglect proceeding OR

The judge finds that the other birth parent has abandoned the child

Abandonment means that a parent goes more than six months without visiting, contacting or financially helping the child. You must present evidence, such as your testimony, to prove abandonment.

If the child is 12 years old or over, the child must consent to the adoption in front of a judge.

Stepparent adoption is forever. If the judge approves it, the other birth parents loses all custody and visitation rights. He or she won’t have to pay child support or have any other responsibilities for the child. Stepparent adoption will make the stepparent the new legal parent, even if he or she later gets divorced from the birth parent.

If the other birth parent does not agree to the adoption, you must prove to the court that the other birth parent’s rights should be taken away.

For reasons like abandonment OR

They are unfit to safely parent the child.

It is required that the child must live with the step-parent for at least 6 months before the adoption can be given. But, there is no set time that you must be married to adopt.

The court must find that the adoption is in the best interests of the child and that the adopting stepparent has enough income and resources to care for the child. To help the court get the information it needs, a home study will probably be done. The court can appoint someone to do the home study, or you can request to have a pastor or other professional complete the home study. Home studies can be waived in cases where the child has lived with the step parent for a long period.

While you do not need a lawyer for stepparent adoption, it may make it easier and increase the chances of your success. You will probably need a lawyer to at least help you write the forms or give you the information you need for the forms you file.